Tuesday, 17 July 2012.

2.30 pm

Royal Assent

2.36 pm

NHS: Primary Care Trusts

Question

2.36 pm

Asked By Lord Hunt of Kings Heath

To ask Her Majesty’s Government what action they will take to prevent primary care trusts inappropriately restricting access to patient treatments.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, it is inappropriate for a primary care trust to impose blanket bans on treatments, or to restrict access to treatments on the basis of cost alone. The department will ask strategic health authorities to investigate any examples of such behaviour, and appropriate action will be taken.

Lord Hunt of Kings Heath: My Lords, in thanking the noble Earl, I remind the House of my health interests in the register. The noble Earl will be aware that there is now abundant evidence that some primary care trusts are restricting treatments that are deemed appropriate, in some cases against the guidelines issued by NICE. Given that, will he go further and seek to ensure that he and his ministerial colleagues intervene in the NHS where this is happening so that we can be satisfied that the NHS will still provide a comprehensive service?

Earl Howe: My Lords, yes, we will intervene if ever it is demonstrated that primary care trusts are restricting treatments on a blanket basis or on a cost basis unrelated to clinical need. Any arbitrary restriction on access to treatment of that kind is unacceptable. We have made that clear repeatedly, as has Sir Bruce Keogh, the NHS medical director, on a number of occasions. However, that is not the same as saying that the NHS should be unconcerned about value for money. It should be very concerned about it. It should not spend money on treating a patient when that patient is unlikely to derive clinical benefit from the treatment. Therefore, we need to distinguish that kind of case from the kind cited by the noble Lord.

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Baroness Masham of Ilton: My Lords, will the noble Earl find out to how many cases the PCT in North Yorkshire has denied treatment in the past year? Is he aware of how distressing it is for very ill patients to have to appeal?

Earl Howe: My Lords, I do not have the figures for North Yorkshire in front of me but, as the noble Baroness is aware, there is a process for patients to make an exceptional case application to their primary care trust where the circumstances are deemed to be exceptional. We had a short debate about this matter the other day. However, there will inevitably be variation around the country in the extent to which treatments are seen as a priority for the local population in a given area.

Lord Winston: My Lords, it is a question not just of treatment but of investigations for treatment. Only last week, I saw a couple complaining of long-standing infertility who were refused a laparoscopy or an X-ray of the uterus on the grounds that they were not permissible as investigations under the National Health Service. It was limited by their primary care trust. Would the noble Earl care to comment on that?

Earl Howe: My Lords, if that case was a consequence of the primary care trust taking a blanket decision over a clinically valid investigation process then I would be very concerned and should be interested to hear the details from the noble Lord.

Baroness Brinton: My Lords, given that there is no consistency in the name that PCT committees are calling themselves to make these judgments about treatments and pathways, and often these matters are reported or hidden in longer performance reports, can my noble friend ensure that PCTs are open and transparent in their decision-making on these treatments, including referencing how their decision reflects NICE guidelines, and also insist that the appeals process is equally accessible?

Earl Howe: Yes, my Lords, we emphasise this principle at every opportunity. Indeed, transparency is a central principle, as my noble friend will be aware, in the way that the NHS constitution instructs the health service to make decisions rationally and transparently so that patients can see the basis on which those decisions have been arrived at. Again, if that is not happening in any area I should be very glad to hear about it.

Lord Walton of Detchant: My Lords, in relation to the point made by my noble friend Lady Masham, is the Minister aware that the particular primary care trust in North Yorkshire has refused the funding for an operation for a bright young lady doctor who is enrolled on a training scheme in that area and who turns out to have a rare hereditary form of pancreatitis? Three surgeons, two in Newcastle and one in Leicester, have agreed as a team to operate on her, otherwise the condition will be progressive and eventually fatal, but the primary care trust has refused funding for the procedure on the grounds that it is somewhat experimental,

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even though it has been carried out successfully on a number of occasions before. Is this not a case that ought to be referred to the Advisory Group for National Specialised Services?

Earl Howe: My Lords, we had a debate about that very case the other day, as the noble Lord will be aware, and as I said then, this matter is under close scrutiny at the Department of Health. I am hopeful of a happy outcome.

Lord Soulsby of Swaffham Prior: My Lords—

Lord Bach: My Lords—

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, perhaps we could hear from the noble Lord, Lord Soulsby.

Lord Soulsby of Swaffham Prior: Thank you, my Lords. This is an unfortunate Question in that it tends to imply that this system is widespread. However, my experience, admittedly only in one hospital in Cambridge —Addenbrooke’s Hospital—is quite the contrary. I do not know just how much my noble friend can comment on whether access for patients has been restricted nationally, but I would very much like to ask him to make sure that this Question is not a common reflection on the National Health Service and hospital service. I do not think that it is.

Earl Howe: My Lords, I agree with the noble Lord. The Co-operation and Competition Panel undertook a review of restrictions on patient care last year, and although it uncovered quite a number of examples of arbitrary rationing, those were cases that took place under the previous Government. We have banned all such cases. We do not believe that this kind of arbitrary restriction is at all widespread, and we have yet to receive any firm evidence that it is taking place at all.

Lord Bach: My Lords, I wonder if the Minister is aware of the widespread feeling of disgust and disappointment at the Government’s decision to close the ECMO cancer unit for children at the world-renowned Glenfield Hospital in Leicester. Is he aware that the quality of work done at that hospital has been praised internationally, and that many thousands of people in Leicester, Leicestershire and beyond are just appalled at the Government’s insensitive and brutal decision?

Earl Howe: My Lords, I am aware of the concern that the noble Lord has reflected in his remarks, but I think that it would be wrong of me to comment. That particular decision flowed directly from a review which was conducted by the NHS, quite consciously at arm’s length from Ministers. The matter is currently under scrutiny and I would not wish to pre-empt any decision that my right honourable friend the Secretary of State wishes to take.

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NHS: Mental Illness

Question

2.45 pm

Asked By Baroness Thornton

To ask Her Majesty’s Government what is their response to the report How mental illness loses out in the NHS, published by the London School of Economics and Political Science on 18 June.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, we agree with the report’s insistence on both the importance of investment in mental health services and on the necessity of treating mental ill health as seriously as physical ill health. Our mental health strategy, No Health Without Mental Health, makes our commitment to these principles clear, and we are soon to publish an implementation framework that will help to embed them in NHS practice.

Baroness Thornton: I thank the Minister for that Answer. I remind the House that during the passage of the Health and Social Care Bill it was agreed that mental health should have the same, equal status as physical health. In that light, at present the 50 outcomes of the NHS outcomes framework include no health outcomes for the millions of people with clinical depression or crippling anxiety disorders. Do the Government have any plans to change that and, if so, when will they change it? When will we see mental health outcomes appear in the outcomes framework?

Earl Howe: My Lords, we have deliberately taken a generic approach to the NHS outcomes framework. That said, the framework for 2012-13 contains three improvement areas relating specifically to mental health: premature mortality in people with serious mental illness; employment of people with mental illness; and patient experience of community mental health services. Therefore, the noble Baroness is not quite right in what she has just said. Many of the indicators in the outcomes framework relate to all patients, including in relation to safety incidents, for example, or experience of primary care. Improving outcomes for people with mental health problems will be a crucial element of success.

Lord Alderdice: My Lords, five out of the six recommendations of this excellent report by the noble Lord, Lord Layard, and his colleagues emphasise the importance of IAPT, an excellent initiative begun by the previous Government, which is being built on by the coalition Government. However, from the time of the previous Government to now, I continue to receive reports that psychotherapy departments, particularly those that provide non-cognitive behaviour therapies such as art therapies, psychodynamic psychotherapy, group analytic psychotherapy and family therapy, are closing down or are unable to get contracts. Can my noble friend help me to understand why that might be the case since, while CBT is valuable and helpful in

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many circumstances, it is not the only approach to treatment that has been demonstrated to be helpful in those who need psychological therapies?

Earl Howe: I am very happy to take the advice of my noble friend, who is of course an expert in this area. Historically, it is true to say that access to talking therapies in the broadest sense has been very poor. That is why we have invested £400 million in rolling out the IAPT programme, which makes available a range of NICE-recommended therapies to a much larger cohort of people. However, I will take my noble friend’s point away and, if I can throw any light on the issue that he has raised, I will gladly write to him.

Baroness Hollins: My Lords, I, too, commend the report. What action would the Minister expect in response to two of the recommendations that relate to training? First, there is the recommendation that an automatic component of general practice training in future should include mental health. Only a minority of GPs currently receive any training in mental health. Secondly, with respect to the current recruitment crisis in psychiatry, it is recommended that we recognise that psychiatrists have an essential leadership role to play in mental health care.

Earl Howe: My Lords, as regards GPs, the Royal College of General Practitioners has identified improved care for people with mental health problems as a priority within its enhanced GP training programme, which forms part of the college’s proposals for a new evidence-based four-year programme of training.

As regards the workforce issues, I am aware that there is concern about recruitment into psychiatry. My department and the Royal College of Psychiatrists are looking into this matter. The royal college has established a task force to make recommendations to improve recruitment, and it is investigating the factors before medical school, during medical school, during foundation training and in core and higher psychiatric training so as to get to the bottom of the issue as best it can.

Lord Hunt of Kings Heath: My Lords, one of the important recommendations in the LSE Centre for Economic Performance report, which led to this Question, concerns the attitude of other doctors to psychiatrists and the issue that that has in relation to recruitment. The report says that,

“it is routine for”,

surgeons and physicians,

“to make derogatory remarks about psychiatry, which affects not just psychiatrists but also their patients”.

I wonder whether the noble Earl has any answer to that.

Earl Howe: The short answer is no, I do not. However, I am aware that the royal college is actively investigating this issue within the terms of its task force, to which I referred in my answer to the noble Baroness, Lady Hollins.

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Baroness Greengross: My Lords, is the noble Earl able to deal with two blatant forms of age discrimination? The first is that the talking therapies are very often denied to older people; pharmaceutical alternatives are cheaper. The other is that, when a diagnosis of dementia is made, the way in which services are organised now means that those services have to be funded by local authority social care rather than the NHS. Given that dementia is a terminal disease, does the noble Earl not feel that this is unfair?

Earl Howe: My Lords, yes, and we have laid great emphasis on the need to bear down on unreasonable discrimination against elderly people. The noble Baroness is aware that the requirement to reduce inappropriate anti-psychotic medication for the elderly is a key part of the Prime Minister’s dementia challenge. Therefore, I identify completely with the remarks of the noble Baroness on that issue.

Social Care: Sustainable Funding

Question

2.52 pm

Asked By Lord Warner

To ask Her Majesty’s Government when they will announce their plans for sustainably funding adult social care.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Government set out their plans for the funding of adult social care at spending reviews. The date of the next spending review has yet to be announced. At the last spending review the Government prioritised money for adult social care, announcing an additional £7.2 billion over four years. When combined with an ambitious efficiency programme, this will provide enough funding to enable local authorities to maintain current service provision.

Lord Warner: I thank the Minister for that Answer. However, is he aware that publishing a White Paper about adult social care without a funding plan is as much a work of fantasy as Fifty Shades of Grey, but without the fun of sex? Do the Government recognise that the longer they delay implementation of the Dilnot commission’s proposals—and here I declare my interest as a member of that commission—the greater will be the social care cost that shifts to the NHS, which has its own funding problems? Starting that implementation will cost around one-thousandth of annual public expenditure, as Andrew Dilnot has repeatedly said. Is it not time that the Prime Minister and the Chancellor engaged with this issue within cross-party talks to try to sort out the funding problems of adult social care?

Earl Howe: My Lords, we look forward to a continuation of the constructive cross-party talks that have taken place. We have been clear that we accept the principles of the Dilnot recommendations, including financial protection through capped costs and an extended

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means test. They are the right basis for any new funding model. That sets out, if you like, our high-level view on what a new funding system should look like, but there will be many questions to answer—such as on the level of the cap and whether the funding system should be voluntary, universal or opt-in—before we can make any firm decisions. It is right that we take time to work through this, including engaging with stakeholders to make sure that any reform is the right one. That means that the next spending review is the appropriate time to take those decisions.

Lord Sutherland of Houndwood: My Lords—

Baroness Campbell of Surbiton: My Lords—

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, can we hear from the noble Baroness, Lady Campbell?

Baroness Campbell of Surbiton: My Lords, is the noble Earl aware that while these complex funding matters are being considered, many local authorities are severely reducing the levels of support provided to disabled people in ways that can curtail their independence, prevent them from working and participating in public life and, in some cases, force them into residential care? Is he aware, for example, that Worcestershire County Council proposes to radically restrict the maximum value of an individual disabled person’s care package, offering them no other choice than to enter residential care if they cannot meet the shortfall? Surely the Minister agrees that this runs entirely counter to the White Paper and government policy?

Earl Howe: My Lords, I am not aware of the Worcestershire example. What I will say is that the best local authorities are those that enter into a two-way dialogue with service users to see what is best and most appropriate for them in their circumstances. I recognise that this is a challenging settlement for local government, but if local authorities are prepared to reform their services and drive down costs, we believe that the additional investment from the NHS to social care, which we announced in the spending review, will enable local authorities to protect the care that people receive. Many councils are making the necessary changes to ensure that there is no drop in eligibility criteria.

Baroness Pitkeathley: My Lords—

Baroness Gardner of Parkes: My Lords, in view of the answers to the previous supplementary question and to the first Question, which stated that decisions should never be made purely on grounds of cost, is the Minister aware of a case in one of the London boroughs where a woman who has had multiple sclerosis for years and has been cared for by a very loving husband has now been told that she may be obliged to go into a care home because providing her care package at home is costing £79,000, while a care home could be provided for £71,000? That would perhaps not destroy, but put a terribly unfair strain upon, her marriage

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after all these years. Can the Minister assure us that in the Government’s plans for health and social care, factors other than cost will be considered?

Earl Howe: It would not be right for me to comment on an individual case such as the one mentioned by my noble friend, but I would say that local authorities have a duty to meet people’s eligible needs, and they should take account of a person’s resources as they do so. If a local authority were to change someone’s personal budget, we would expect it to consult and discuss with the service user how their needs and goals could best be met within the new budget. It should not, in most cases, descend to forcing any options on anybody.

Baroness Pitkeathley: My Lords, I was happy to give way to the noble Baroness, especially on her birthday. The Minister’s words may be comforting to many families when contemplating the future, and may provide comfort that the Government have plans for the future. However, what comfort will he give to my neighbour Margaret who is caring for her husband, who is in the last stages of Alzheimer’s, and is in despair with his and her physical and mental distress? Today—now—they face huge costs for care that is intermittent and often of very poor quality. How does the Minister address the poor-quality issue in the face of such a shortage of funds?

Earl Howe: My Lords, as I made clear, the Government and my department have made a very significant sum of money available to local authorities to bolster their social care funding. In the announcements we made last week we said that we were directing additional money to local authorities to support integrated care. I regret the instance that the noble Baroness cites, but it is part of the reason why, in our White Paper and in the announcements we made last week, there is a particular focus on quality and on ensuring that the tick-box approach—which I am afraid some local authorities have taken—should be a thing of the past.

Olympic Games 2012: Traffic

Question

3 pm

Asked By Lord Lea of Crondall

To ask Her Majesty’s Government what contingency plans they have made to deal with heavy traffic on key London roads when the Olympic route network becomes operational from 25 July.

Lord Lea of Crondall: My Lords, could I ask the noble Earl, Lord Howe, the Answer to the Question standing in my name on the Order Paper?

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Earl Attlee: My Lords, I think the noble Lord got slightly confused there. The Olympic route network—the ORN—has been established to ensure the Games family get to events on time. Games lanes will operate flexibly and be open to all traffic when possible. Motorists should avoid central London and, like everyone, plan their journeys at the Get Ahead of the Games website. We have comprehensive traffic management plans in place and will be focused on getting people to their events on time and keeping London moving.

Lord Lea of Crondall: I thank the Minister for that Answer, which means that there is no contingency plan. There is no plan B. I will give an example of a major artery, and I declare an interest shared with many thousands of people in central London: I live on Southampton Row, a continuation of Kingsway, where there is one bus lane alongside one Olympic lane. In other words, it is a no-go area. The Evening Standard reported last Friday that Transport for London said that everyone could use the bus lane in those circumstances, but local officials say that is not the case. Is there not likely to be great confusion, at least after 25 July, leading to gridlock—which is of great concern for shops, buses, taxis and everyone in that area, and in similar areas around London—with no contingency plan in place?

Earl Attlee: My Lords, the noble Lord suggested that there is no contingency plan. There are very detailed contingency plans. For instance, Transport for London has designated alternative Olympic route network roads in case the primary Olympic route network becomes inoperative. As regards the problem that the noble Lord describes, I suggest that he consults the Get Ahead of the Games website. My officials tell me that I have to say “Get Ahead of the Games” in every single supplementary question I answer.

Lord Addington: My Lords, would the Minister agree that complaining about having some traffic disruption during the world’s biggest event is a little like someone who has sat on a fire complaining about their backside burning?

Earl Attlee: My noble friend is absolutely right. The world is coming to London in 2012. Our transport system faces unprecedented challenges, and the Olympic route network is essential to ensuring that the transport system works at Games time and to making the Games a great success, as I am sure they will be.

Baroness Butler-Sloss: My Lords, has the Minister tried to work the Get Ahead of the Games website? I am totally in favour of the Olympics and of seeing the signs on the roads. However, I wanted to find out whether I could come into London on a particular route. If the Minister tried the website, he would find it very difficult to find the answer.

Earl Attlee: My Lords, when I last answered a Question about the Olympic travel arrangements, I used the Get Ahead of the Games website, and it worked. Sometimes these websites take a little bit of getting

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used to. I urge noble Lords to persist with it. It is a very good tool, particularly to see which Tube stations will be very heavily congested, and at which times.

Lord Geddes: Could my noble friend confirm, or otherwise, that while the House is sitting, Members of the House may use the Olympic lanes when coming to and from the House?

Earl Attlee: My Lords, I suggest that that is an extremely unwise course of action. The policing of the Olympic lanes—the Games lanes—is similar to bus lanes. If the noble Lord thinks he can use a bus lane with impunity then he can try the Olympic lanes, but it is not something that I would recommend.

Lord Davies of Oldham: I find myself agreeing with the Minister that, of course, London has to offer a welcome to visitors from all over the world to these Games. The lanes are essential to the smooth running of the Games. Of course, there is already sufficient confusion and long tailbacks have been established on some routes and the lanes are not even in action yet. We must make every effort to make things clear to the public. Would the Minister strengthen the point that he made a moment ago that no privileged access to the ZiL lanes, apart from for Olympic officials, will be permitted and certainly not for Ministers of the Crown?

Earl Attlee: My Lords, I can assure the House that Ministers of the Crown do not have any privileges in regard to the use of the Games lanes, with the exception of when advised to use them by the security services, and that will apply to very few Ministers indeed.

Lord Hughes of Woodside: My Lords, how can the House have confidence in all the contingency plans here and there when, if we are to believe today’s press, a coach driver taking an Olympic team to the stadium could not find his way and took four hours to get there? He could not read a sat-nav and apparently was directed to the stadium only when someone managed to find it on their mobile phone.

Earl Attlee: My Lords, I expect all noble Lords have had a sat-nav moment. I certainly have in my driving career. LOCOG knows where all the Olympic coaches operated by it are on the Olympic network and, if something goes wrong, LOCOG will know. I do not know the full details about the coach to which the noble Lord refers, but I can assure noble Lords that LOCOG has a good system for managing the coaches.

Motion to Approve

3.07 pm

That the draft regulations laid before the House on 12 June be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 July.

Motion agreed.

Parliamentary Commission on Banking Standards

Membership Motion

3.07 pm

Moved By Lord Strathclyde

1. That the Commons message of 16 July be considered and that a Committee of five Lords be appointed to join with the Committee appointed by the Commons as the Parliamentary Commission on Banking Standards, to consider and report on:

(a) professional standards and culture of the UK banking sector, taking account of regulatory and competition investigations into the LIBOR rate-setting process;

(b) lessons to be learned about corporate governance, transparency and conflicts of interest, and their implications for regulation and for Government policy;

and to make recommendations for legislative and other action;

2. That, notwithstanding the provisions of Standing Order 63(2), the following members be appointed to the Committee:

6. That the Commission have leave to report from time to time and that the Reports of the Commission shall be printed, regardless of any adjournment of the House;

7. That the evidence taken by the Commission shall, if the Commission so wishes, be published;

8. That the Committee appointed by the House of Lords have power to report to the House any decision of the Commission reached pursuant to paragraph 9 of the Commons resolution of 16 July;

9. That the Commission shall have power to appoint sub-committees to consider matters specified by the Commission within the terms of this order and a sub-committee shall have:

(a) the powers in paragraph 5(a), (b) and (e); and

(b) the power to invite specialist advisers appointed by the Commission (including Counsel appointed as specialist advisers) to examine witnesses;

10. That the quorum of the Commission shall be two members of each House;

11. That the quorum of any sub-committee shall be one member from either House; and

12. That the Commission shall report on legislative action no later than 18 December 2012 and on other matters as soon as possible thereafter.

Motion agreed, and a message was sent to the Commons.

Arrangement of Business

3.08 pm

Baroness Royall of Blaisdon: My Lords, the House of Commons rises today, as we all know, and noble Lords may recall that, during the Jubilee Recess when this House sat, the Government announced changes to tax policy to the media rather than to Parliament—that is to say, to our House. I would be grateful if the Leader of the House could reassure noble Lords that when the House of Commons has gone into recess any policy announcements will be made to this House, while it is sitting, as we are a House of Parliament, rather than to the media first. We shall be vigilant with regard to any sneaky Statements that might come out.

I also take this opportunity to wish a very happy birthday to the Chief Whip, the noble friend of the Leader of the House.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I am sure that the whole House will join in those very happy returns to the Captain of the Honourable Corps of the Gentlemen at Arms.

There is no desire on the Government’s part to produce any sneaky Statements at all when the House of Commons is not sitting. Of course, this House will be sitting next week and any Statements, Urgent Questions or PNQs will be taken in the normal way.

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Lord Grocott: Will the Leader of the House undertake to inform the House of the additional cost that will undoubtedly be incurred as a result of this House sitting as though it were a unicameral system for a week now, then the Commons sitting for a fortnight as though it were a unicameral system in September, and then this House sitting again a couple of weeks after that? It undoubtedly means that we will be functioning less efficiently with all sorts of committees, which affect Members of both Houses, being unable to operate as they would when Parliament functions in the normal way. However, I refer specifically to the costs of the Houses sitting in a way that the Government now seem bent on, which I do not think is for the convenience of the House or of the public.

Lord Strathclyde: My Lords, that is most bizarre. The House has sat on different days from the House of Commons for decades, as far as I can remember. If there are any additional costs, I shall let the noble Lord know. I do not think that there will be; we are not sitting, overall, for more days than otherwise we would have been.

Defence Equipment and Support

Statement

3.10 pm

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Defence to an Urgent Question in another place on defence equipment and support. The Statement is as follows:

“A key element in the transformation process under way in the Ministry of Defence is that of its equipment and support activities through its Materiel Strategy. Reforming the acquisition system to drive better value from the defence budget is a core element of the transformation process under way in the Ministry of Defence.

This will require changes to the Defence Equipment and Support organisation to ensure that it has the structures, management and skills it needs to provide the right equipment to our Armed Forces at the right time and at the right cost. Change is essential to tackle the legacy problems in defence acquisition that have historically led to cost and schedule overruns, and which have resisted previous attempts at reform. The current system does not help or support DE and S properly, and it is not delivering value for money for the taxpayer.

Analysis reveals the following root causes: a historically overheated equipment programme, in which far more projects were planned than could be paid for; a weak interface between DE and S and the wider Ministry of Defence with poor discipline and change control between those setting requirements for equipment and those delivering the programmes; and insufficient levels of business capability at DE and S for the scale and complexity of the portfolio it is asked to deliver.

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The result of these combined issues has been significant additional costs in the defence budget, in the order of hundreds of millions of pounds each year. Earlier this year MoD officials were asked to focus their efforts on considering the comparative benefits which could be derived from changing DE and S into either an executive non-departmental public body with a strategic partner from the private sector, or a government-owned, contractor-operated entity. The work done to date suggests that the strategic case for the GOCO option is stronger than the ENDPB option. Further value-for-money work is under way to confirm this assessment.

In the mean time, as resources and commercial appetite constrain our ability to pursue these two options simultaneously to the next stage, we have decided that the department should focus its effort on developing and testing the GOCO option further. The work to determine value for money between the options will take place over the next few months. In parallel, we will begin to develop a commercial strategy, engaging with industry to hone our requirement. This work will support decisions later this year on whether to proceed with the GOCO option and whether to launch a competition for a private sector management company to run the organisation.

Provided that the further work demonstrates that the value-for-money case for GOCO over ENDPB/SP is conclusive, this will be followed by an investment appraisal that will test the GOCO against a public sector comparator. Ultimately, this would be followed by a decision on whether to proceed”.

My Lords, that concludes the Statement.

3.14 pm

Lord Rosser: My Lords, I thank the Minister for repeating as a Statement the response to the Urgent Question that was accepted and answered in the other place earlier today.

The Secretary of State also issued a Written Ministerial Statement today, the last day before the House of Commons breaks for the Summer Recess. In that Written Statement as well as in the Statement that we have just heard, the Secretary of State set out his views on why the present system of procurement did not work as effectively as it might. He went on to say that the restructuring of defence equipment and support was key to maintaining the defence budget in balance.

Two options for restructuring have been considered—namely; either an executive non-departmental public body, with a strategic partner from the private sector, or a government-owned contractor-operated entity. The Government take the view that the work done to date “suggests” that the case for the government-owned contractor-operated company is stronger than the first option, but say that further value-for-money work is under way “to confirm this assessment”, which indicates that in the minds of some a conclusion has already nearly been reached.

In the mean time, the Secretary of State said in his Written Statement that,

“as resources and commercial appetite constrain our ability to pursue these two options simultaneously to the next stage, I have decided that MOD should focus its effort on developing and testing the GOCO option further”—

that is the government-owned contractor-operated option.

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I have a number of questions for the Minister, although, before I start, I must say that I am not expecting him to be a walking encyclopaedia. If he is not able to respond to all my questions, it would be more than acceptable if he were able to give the answers subsequently in writing.

First, what would be the additional cost of pursuing the two options simultaneously to the next stage, and what exactly are the “resources and commercial appetite” constraints referred to? Unless it is going to cost a substantial sum, the constraints cannot be financial since the Secretary of State has told us that he has balanced the defence budget. He has also told us that the restructuring of defence equipment and supplies is key to the process of maintaining the budget in balance. This is hardly an issue one would have thought appropriate for not undertaking with complete thoroughness and openness and testing fully the merits of the two options when the Government agree that the work done to date only “suggests” that the GOCO option might be better.

The Secretary of State said more than once in his Statement today that the criterion is value for money and apparently only value for money. Is it literally the case that no other factors will be taken into account in determining the most appropriate form of restructuring for defence equipment and supplies? What factors are included within the criterion of value for money? Issues of national security must surely be involved in defence procurement, including security of sensitive information or the potential loss of skilled staff who may not wish to move to the private sector under the new structure proposed. How will non-monetary considerations be assessed against a value-for-money criterion?

The Statement refers to having a competition for the private sector management company to run the organisation. What kind of companies will be invited to tender? Will they be major defence contractors and, if so, would there not be a potential conflict of interest if such a company were running an organisation awarding contracts? Or, will major defence contractors or companies with defence contracts be excluded? In which case, what skills or expertise in the defence field would such a management company be expected to be able to show?

After all, we need to be very careful. We have just had an example of a major private company involved in the Olympic Games on the security side which has not exactly excelled itself. One of the issues in that case is that the Home Office said that it was not aware of the impending failure to deliver because contracts were with LOCOG and not direct with itself. Is that not a possible likelihood with the GOCO: namely, that Ministers become a step further removed from knowing what is actually happening, with the potential consequence of the kind of situation we have seen with G4S? The GOCO appears to bring a third party between the defence contractors and the Ministry of Defence, which may not be helpful.

Under the GOCO arrangement, where will commercial risk within the private sector lie in future? In particular, what commercial risk would lie with the GOCO? The GOCO will have contracts with defence contractors. If

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the defence contractor fails to deliver, presumably the defence contractor picks up the bill. However, what happens if changes are made to the specification? Will the GOCO and the private management company bear the additional costs, or will they continue to lie with the Ministry of Defence? What expertise is it considered that the private management company will bring that is not there at present? Will it be technical, or some other form, of expertise? Is it envisaged that all DE and S will be transferred over to the new private management company, and continue to work at its existing locations? Will military personnel continue to be part of DE and S if it becomes a GOCO, and on what basis will they be employed? As it will be run as a private company, will they be required to leave the Armed Forces? Is the reality in fact that the only change is that at boardroom level the GOCO will be run by private sector managers, who will not be required to have any defence experience, as opposed to DE and S being run by the Ministry of Defence?

Where will the GOCO fit in as far as the international dimension is concerned? There is the issue of our defence manufacturers being asked to provide equipment which will also meet specifications to make sales overseas achievable. There is also the political decision on whether to procure defence equipment from overseas which is made overseas, or whether to have equipment largely made and supplied from within our own country. Who will make those decisions: the GOCO or the Ministry of Defence? Will primary legislation be required if the government-owned, contractor-operated company is to be established?

The Statement by the Secretary of State also referred to testing the GOCO against a public sector comparator before finally deciding whether to proceed. Which public sector comparator would that be, and will the only criterion once again be value for money? Finally, how can we be assured that our brave troops on the front line, who it is widely accepted have the best equipment and supplies under the present DS and E structure, will continue to do so under the vague and unclear future now being proposed?

3.23 pm

Lord Astor of Hever: My Lords, the noble Lord is quite right; I am not a walking encyclopaedia. I will do my very best to answer as many questions as I can, but I will write to the noble Lord with the answers to the others. I will also put a copy in the Library.

I will try and take the questions as they came at me. The noble Lord asked why we need to change DE and S. For decades, the MoD has wrestled without success with the legacy problems of defence acquisition. It is clear that addressing the problems within current structures will be extremely challenging. We will, however, develop a public sector comparator based on DE and S-plus, which will be an on-vote solution with enhanced capabilities. The noble Lord asked if primary legislation would be necessary. At the moment we feel that it probably will not be, but we are putting in place all the building blocks just in case.

The noble Lord asked why the GOCO route was preferable. Work to date indicates that the strategic case for GOCO is stronger than that for an ENDPB

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with a strategic partner. This is based on the significant qualitative benefits that a GOCO would bring. These include the flexibility of the private sector, the increased resources available to support successful delivery and the introduction of a change in culture and behaviour to improve DE and S’s focus on the bottom line. It gives us much more strategic freedom by allowing us to manage staff in a flexible way and to bring in private-sector skills.

The noble Lord asked about value for money. Officials expect to complete work on the value for money analysis in the next few months, for consideration by Ministers in the autumn. The value for money analysis is an extremely complex area of work, representing a business change without precedent in government and requiring thorough analysis to enable discrimination between the options. This is a big decision and it is worth spending the extra time now to ensure that we make it for the right reasons.

The noble Lord also asked about members of the Armed Forces. The requirement is for specialised expertise, knowledge and skills in areas not currently found in DE and S and the wider department. This external support is key to getting DE and S into a position to create an effective organisation going forward. An important element of the future organisational design of DE and S will be ensuring that the military continues to play a key role, which will be important for individuals’ careers.

I was asked why we rejected other models. It is clear that addressing DE and S’s problems within the current structures will be extremely challenging. Changing DE and S to a trading fund was ruled out early on the basis that it would not be suitable for its business. It would also not be appropriate to privatise the organisation. The noble Lord raised the international situation and the position of our allies. We are working with our international partners to ensure that their interests are protected during the transformation of DE and S.

Those are all the questions I managed to write down. As I said earlier, I undertake to write to the noble Lord on any others.

3.27 pm

Lord Lee of Trafford: My Lords, this is a very short Statement for a huge issue. I remember taking two Bills through the other place nearly 30 years ago to privatise the Royal Ordnance factories and contractorise the dockyards, which I understand is probably the best example of a GOCO. I want to query the Minister’s response that we are unlikely to need legislation. I would be grateful if he could further explore that.

I have four specific questions. First, who is studying the comparative benefits of the two main options? Are they just MoD officials or are consultants involved as well, and what is the cost of those consultants? Secondly, I refer to the claim that,

“resources and commercial appetite constrain our ability to pursue these two options”.

I really do not understand what commercial appetite constraints are. The noble Lord, Lord Rosser, also raised this point in his remarks. Thirdly, is either option likely to involve civilian redundancies over and above the 25,000 already being targeted by the ministry?

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Finally, are there any examples of other countries effectively outsourcing their supplier of military equipment in this way?

Lord Astor of Hever: My Lords, I agree with my noble friend that this is a really big issue. I had only a short time in which to prepare for this Statement and that made me realise what a big subject this is. It may be an area on which we could have a debate in the House, and I would encourage my noble friend to go through the usual channels to see whether a debate could be set up. He asked why no legislation was necessary for this. I asked officials about that and their advice was that it is very unlikely—but just in case it is needed, all the building blocks are being put in place. No decisions on the future operating model of DE and S have yet been taken. The GOCO may require legislation, but the issue will be addressed in due course.

I cannot answer my noble friend’s question about whether it was just MoD officials involved in the decision-making process, but I understand that there will be no additional redundancies as a result of these changes. I am pretty certain that that is the correct answer.

Lord Craig of Radley: My Lords, one of the criteria that Mr Bernard Gray identified in his major study of DE and S was that a budget provision for a 10-year period should be made for the equipment programme. Many instances of overloading the programme in the past have probably been attributable to changes in the budget provision, which the Ministry of Defence had expected. Has an agreement been reached on the lines of what Mr Bernard Gray was looking for, with a 10-year guaranteed budget for the equipment programme? Without that it will be difficult to be sure that we will not overload the programme if there are cuts.

Lord Astor of Hever: I can assure the noble and gallant Lord, Lord Craig of Radley, that Bernard Gray, who wrote the report, is now working for the MoD—poacher turned gamekeeper. I am confident that he has extracted a lot of the assurances that he was after.

Lord Trefgarne: My Lords, can my noble friend confirm that the input of the chiefs of staff into the initiation of the defence procurement process—namely the preparation of staff targets and staff requirements—will remain untouched after the changes that he proposes?

Lord Astor of Hever: My Lords, I cannot give my noble friend that assurance, but I am pretty certain that the Chiefs of Staff will have had strong reassurances on that issue.

Lord Stirrup: My Lords, I am in no doubt of the need to improve the overall performance of Defence Equipment and Support. However, I have lost count of the number of major reorganisations to which the mechanisms for defence acquisition and logistic support have been subjected over the past decade and a half. It seems unreasonable to expect superior performance from any organisation that spends almost its entire

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time studying its own navel. Can there be sufficiently wide-ranging consultation this time so that whatever emerges from this particular exercise has some chance of enduring for at least a number of years, and so that we can get some performance out of the organisation rather than a wholesale change of deck-chairs every few years?

Lord Astor of Hever: My Lords, the noble and gallant Lord makes a good point. As we said in the Statement, no decision will be taken until the end of the year. We want to discuss this with as many people as possible, not least our own workers and the trade unions, so I can reassure the noble and gallant Lord.

Lord Burnett: My Lords, I endorse the point that my noble friend has made: we should have a debate not only on this matter, but on many other matters. Perhaps a debate will go some way towards highlighting the matters that the noble and gallant Lord, Lord Stirrup, mentioned. We have had severe and deep cuts to the Army, and questions as to the inequitable nature of the redundancy payments and of the capacity and capability of the reserves, however willing they are. But on this matter, will my noble friend explain the advantages to the Armed Forces of privatising the Defence Equipment and Support organisation? I hope that factors such as security of supply, urgency, value for money, secrecy and commitment are paramount in the minds of those who are deciding this policy.

Lord Astor of Hever: My Lords, I would certainly welcome a debate on this subject, not least of all because it would give me more time to swot up on a complicated subject. As for the advantages of privatising Defence Equipment and Support, and as far as the Armed Forces are concerned, there is a compelling case for reform. Analysis has shown that cost and schedule overruns have resulted in significant additional cost to the defence budget of the order of hundreds of millions of pounds each year. A GOCO offers the greatest likelihood of focused and sustained improvement. It has the strongest incentive for culture change and a drive for productivity. The Armed Forces will benefit from getting equipment and services on time and at the right price.

Lord Bach: My Lords, do the Government believe in the concept of a defence industrial policy? It seems to some of us that in reality this plan may mean that within a fairly short time we will be buying off the shelf from anywhere, at the expense of—and with no regard for—the British defence industry, which is an excellent manufacturing industry, one of the few that remain, providing many jobs and great skills, very much to the benefit of this country. Some of us worry that the ultimate consequence of this sort of decision will be to kill off the British defence industry. Does the noble Lord agree?

Lord Astor of Hever: My Lords, it is very nice to see the noble Lord back here discussing defence issues. I can assure him that we buy the best equipment for our Armed Forces. That is our starting and ending point.

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Lord Boyce: My Lords, currently Defence Equipment and Support has stewardship of a key front-line activity, logistics support, which includes such things as running naval bases. However successful or otherwise one might view Defence Equipment and Support’s performance in this area, the current shock with respect to outsourcing of major critical activities has to be a concern. Can the Minister reassure the House that the area of logistics support to the front line will be very carefully guarded; for example, passing back the running of naval bases to the single services?

Lord Astor of Hever: My Lords, I can give the noble and gallant Lord that reassurance. Obviously, in the light of the G4S issue, we are looking at it even more carefully.

Lord Selkirk of Douglas: Can the Minister say whether the withdrawal of equipment that is surplus to requirements from areas such as Afghanistan will have any effect on the equipment programme?

Lord Astor of Hever: My Lords, we will have to decide whether to take the UOR equipment back into the core defence budget. It is much too early to give my noble friend an answer on that. We are looking at it very closely.

Lord Elton: My Lords, in mulling over his reply to the noble Lord, Lord Hunt of Kings Heath, will my noble friend—

Noble Lords: Lord Bach.

Lord Elton: I am sorry, the noble Lord, Lord Bach. It is a mistake I have made before. Bad map-reading; I apologise.

Lord Bach: The noble Lord should not insult my noble friend Lord Hunt of Kings Heath, but he is not the first to do so.

Lord Elton: My Lords, if I can start again, can my noble friend tell us whether in any debate that we have he will be prepared to answer questions about how research and development will be continued under the new organisation? It is very important that the budgetary and technical skills of the department, the military and the commercial suppliers are co-ordinated. How is that going to be managed and by whom?

Lord Astor of Hever: My Lords, my noble friend makes a very good point. If we do have a debate, I undertake to answer as many questions as I possibly can, and I would ensure that I got sufficient briefing to answer my noble friend’s question on this important issue.

Lord Empey: My Lords, some of us in this House have had experience of a GOCO being established in Northern Ireland to run the water industry. My colleagues will know that it has not been a very pleasant experience. I urge the Minister to look at that example because failure in this area would be much more catastrophic. Is not planning for defence infinitely more difficult

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than virtually any other area of Government because events quite often occur that require changes in specification, which generate most of the cost overruns?

I also support the point made by the noble Lord, Lord Bach. We are second in the world in aerospace at the moment and there are strategic reasons why we need to maintain a defence industry, which do not always mean the cheapest contract wins. We have to maintain a long-term strategic capability in this country. I would certainly be looking forward to seeing that issue addressed in any proposals. I echo what other noble Lords have said in calling for an early debate on this and related issues.

Lord Astor of Hever: My Lords, as we said in the Statement, we have undertaken to consult as widely as possible, so I encourage the noble Lord to feed in any issues he has in relation to the water GOCO so that any lessons can be learned. I, more than anyone, want to see a strong defence industry in this country and we will do what we can to ensure that there is one.

Lord Williams of Elvel: The Minister said that he wants to consult as widely as possible. What form will that consultation take? We have had a Statement and a number of questions to which there are, apparently, no answers because the Minister says he has not been briefed. Will there be a Green Paper? Will there be a debate? What are the answers? It is a sad day in this House when we have a Minister saying, “I am terribly sorry, but I do not know the answer to any of these questions”.

Lord Astor of Hever: My Lords, that is very unfair. I did not say that I had not been briefed; I just said that I would welcome a debate because it would give me much more opportunity to talk at greater length about these very important issues. I never said that I had not been briefed—that is completely untrue—but I would welcome a debate in order to air all this and to hear any questions and issues that noble Lords have on this important subject.

Lord Stoddart of Swindon: My Lords, following the question from the noble Lord, Lord Bach, about the need to maintain a strong British defence industry, and the Minister’s agreement with that, is there any constraint on that policy through having to obey the strict rules under the single market by which contracts have to be advertised throughout the European Union? Value for money is an absolute, although there may be constraints upon the cost that is paid.

Lord Astor of Hever: My Lords, as I said earlier, I want a very strong British defence industry. We have to obey EU industrial rules, whether I like it or not; we have to stand by them.

““national security” means an operation of the intelligence or military services”

Lord Hodgson of Astley Abbotts: Amendment 53 is a simple amendment, which merely inserts at the end of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military services. If I say “simple”, it is probably deceptively simple, because I fully appreciate that its consequences are far from simple. Indeed, the noble Baroness, Lady Manningham-Buller, has very kindly told me that she does not agree with this approach, and as she has forgotten more about national security than I will ever know, I await with interest what she has to tell me on the other side of this coin.

I make two background points. One is that I am not wedded to the wording of the amendment. This is just the best that the organisation Reprieve and I could come up with. However, I am wedded—this is the second point—to the idea of a debate, so that we can explore the advantages and disadvantages of having a definition. Why, on balance, do I think that there should be a statutory definition? I suspect that, over the years, the absence of a definition has given the Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to have a flexible definition, but we are now looking at different things in the Bill and I think that the arguments about flexibility come under more stress and strain.

I will share with the Committee some examples of the flexible use of the phrase “national security” in the past. Some 40 years ago I applied to join the Foreign Office and it turned me down, greatly to its good fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of national security. More recently, I recall an elderly heckler of the then Prime Minister Tony Blair being detained under prevention of terrorism laws, which presumably also could give rise to questions of national security. The rather graphically described “spy HQ” overspend on both the MI5 and MI6 buildings, whose costs overran by £226 million, was able to be discussed only in part on grounds of national security.

3.45 pm

Those are some of the different sorts of issues that have given the Minister of the day discretion to use that particular term. I accept that that was then and this is now, but under this legislation, the Secretary of State has the power to use “national security” as a trigger for the closed material procedure, with all that that entails, and which noble Lords have been discussing these past few days in Committee. Given these new powers, “national security” needs to be defined, first, and not least, to avoid the danger of citizens being swept up by a future Secretary of State’s view of what constitutes national security—perhaps against the background of great national anxiety because there

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has been some outrage or other—and, secondly, and equally importantly, because the Government of the day should not be able to use the phrase to avoid incidents that reveal embarrassment or incompetence. Although the narrowing of the term from that of “sensitive information” since the Green Paper is welcome, “national security” still covers a potentially broad range of definitions. For the purpose of this legislation, it would seem sensible to limit it, perhaps to operations of the intelligence services or the military, or seek to limit it to an identifiable operation that would impact on the security of British citizens.

The special advocates have been prayed in aid a lot in Committee and I am afraid that I am going to do so again. They say in their briefing that there has been,

“no attempt to define ‘national security’. This leaves open the possibility that the Government will in the future seek to argue that cases currently understood as impacting on the international relations of the United Kingdom or on serious crime fall within the phrase ‘national security’. The Government should be invited to make clear, either by amending the Bill or by making a

Pepper v Hart

statement, that it will not argue for such an expansive interpretation of ‘national security’”,

in the future.

I accept that there are arguments on the other side against this, which can best be summarised by the problems caused by the legal straitjacket of a statutory definition and the inability to respond to changing circumstances. Perhaps at some date in the future, a case that clearly involves national security will somehow fall outside the statutory definition, which would be a tragedy. Speaking against my major argument, I see the force of this, since I have been carrying out the charity review, where we have been trying to consider a statutory definition of “public benefit”. That suffers from exactly the same issues—it changes all the time as the voluntary and charity movement shifts and creates new areas of activity. In the end, I concluded against a statutory definition because of the inflexibility it would impose, particularly given the entrepreneurial nature of the sector. But—and it is a big but—“public benefit” does not result in people going to prison for offences based on evidence they are not, or cannot be, told about.

On balance, I think that a statutory definition should be brought in. As with all the amendments I will be moving on this part of the Bill, this is a probing amendment and I look forward to hearing the Government’s view on the principle, not the precise words chosen. I beg to move.

Lord Deben: My Lords, I rise to support this amendment in much the same way as it was presented. In other words, I can understand that these may not be the words which the Government could accept, but some definition is essential and I can give a personal example of how I believe that to be so. During the time when I was in the other House, I sought to establish, for constituency reasons, the precise details of why a number of aeroplanes flew over my constituency to bomb an aspirin factory in Sudan. The information was available in detail in the United States. As I got nearer and nearer by asking a series of questions, I was told that I could ask no more questions because the Prime Minister had decided that it was a matter of

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national security not to tell me the terms under which these flights took place. It was very difficult to accept that because I could read in the American papers exactly what had happened, but evidently it was not something that could be given to me as a Member of Parliament in this country about something which had happened from this country, which had been an outrage and which was based upon false information provided by the American security services.

I am one of those who voted against the Iraq war on the basis that I did not believe what the Prime Minister was telling me—or rather I thought he told me more than he knew, which is perhaps a more polite and parliamentary way of putting it. One reason why I did was that I had learnt—as the French say—to méfier when it came to such a firm statement that it was about national security. We have gone through a period in which these words have been used more to avoid embarrassing comments and questions than to fulfil their important role of protecting our lives and those of our servicemen. I do not think that anybody could accuse me or my noble friend Lord Hodgson of being other than clearly on the side of the right, in more senses than one, so we are not likely to wish to undermine national security. However those of us who take that view have an important role in making sure that it is not misused, as it so often is. In this House we have a series of examples when, because of public outcry, we legislate in all sorts of areas, saying that there is a greater national good which overcomes the normal concerns. At no time is that more important than when we have a great concern about terrorism.

If we look back into history, some of the biggest losses of freedom have taken place in defence of national security and in the prevention of terrorism. In a sense, it is not for those who always dislike the forces of law and order to fight this battle; it is for those of us who are instinctively and almost by DNA on the side of the forces of law and order to explain why we are worried when this sort of thing happens. I have four children. One was taking a dog for a walk when it stopped—as dogs do—on the other side of Whitehall from Downing Street. While the dog fulfilled its purpose, a policeman approached my child and said that he should move on. My child politely said: “The dog is just about to finish”. The policeman said: “If you don’t, I’ll arrest you under the Prevention of Terrorism Act”. My child was intelligent enough to say: “I do not think, officer, that you can do that, but if you just let the dog finish”. It was only through the intervention of a senior officer that there was not what I might call “an incident”.

I know that this does not happen widely but it is very easy to use these phrases as though they help in these discussions. That is why I want a definition. “National security” is far too wide a phrase. It may be that we need to extend it from this, but I hope that the Government will take seriously the fact that the time when we are most concerned with terrorism is when freedom needs to be protected. It is now that we have to take these measures and make sure that we are not giving future Home Secretaries, Prime Ministers and the like the ability to use ill worded phrases to do things that, both in prospect and in retrospect, would do a great deal of harm.

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The Marquess of Lothian: My Lords, I have very mixed feelings about this amendment. I said in my speech at Second Reading that national security should not be so widely interpreted as to give cover for embarrassment or incompetence. I am sure that is absolutely correct. Indeed, my noble friend Lord Hodgson made that point. However, I am very worried when we begin to interpret something such as national security in terms of specific operations or departments. In passing, I make the point that the Diplomatic Service may do many things overseas that affect national security. Many embassies that I have been to have protected rooms where such matters can be discussed. It would be naive to say that because they were done by the Diplomatic Service and not the intelligence service, those matters were not, in the terms of the Bill, ones of national security.

I do not have an answer. All I can say is that you know national security when you see it. The difficulty of looking at this in terms of legislation is that you cannot see it. To give one example, we debated earlier the activities of the Intelligence and Security Committee and the process of redactions. When a suggestion to redact is made by the Prime Minister, it has to be on the basis of national security. There have been cases in which the committee has argued that national security was not affected. In the course of a practical argument you can come to an answer about what is national security and what is not. This does not help the Minister on the Front Bench. However, I feel it is somehow better to leave the definition more open and allow it to be interpreted in the context of the individual circumstances of each event than to curtail it within the definition of the activities of various departments. In the end, we might find that we are throwing the baby out with the bathwater if we proceed in that way.

The Earl of Erroll: My Lords, I shall make a couple of topical points in support of the noble Lord, Lord Deben. This is very complex. In the old days, in a less complex world, we knew how to finesse these things in a common-law society. Now we are moving towards statute law. The French know how to disobey the law sensibly in view of local circumstances. They know that you cannot slavishly obey every rule. We have not learnt that yet, so we should be very careful about how we set the rules in case they are slavishly obeyed. Somehow blurring the boundaries is much more sensible. I am not sure that having this whole thing of national security quite works. We have seen photographers being stopped for photographing perfectly innocent targets in the name of national security. I am very worried about the way that certain people will use these rules to stop normal activities. We regard ourselves as a free country but, if we are not careful, we might cease to be free. We have to worry about how other people, less sensible than us, may interpret rules in a very strict way in the future.

Baroness Manningham-Buller: My Lords, I say to the noble Lord, Lord Hodgson, that I certainly did not say that I knew all there was to know on the subject. I understand the concern over the misuse of this phrase to which everyone has referred. No one in this Committee would support what happened to the

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son of the noble Lord, Lord Deben, and his dog or the use of the phrase to cover embarrassment. These things are absolutely not to do with national security, which is being used as blanket cover.

4 pm

There are some issues and problems with this amendment. If the Committee will allow me, I will give a slight history lesson, and I apologise for that. When I joined the Security Service, national security meant to us something pretty narrow following the Attlee instructions at the end of the war to the intelligence community. It involved the military protecting the UK from the threat of military attack and the security and intelligence services protecting it from espionage, sabotage, terrorism and threats to parliamentary democracy from the extreme right and extreme left—fascism and communism. That understanding of national security, articulated in the Attlee declaration, informed the first tranche of legislation: the Security Service Act, the first Interception of Communications Act, the Intelligence Services Act and Regulation of Investigatory Powers Act. It was an understanding which certainly was not articulated in law but was well understood within the community.

The previous Government—and I do not blame them for this—said, “Hold on, the security and safety of the citizen is much wider than these issues”. Therefore they drew up, under the previous Prime Minister, a national security strategy which was much broader and included things such as pandemics and added cyberthreats, energy security and so on and this Government have built on that early national security strategy and now have quite a long national security strategy that covers a wide range of issues.

In this Bill, it seems to me that we are talking not necessarily about the operations—the noble Lord’s definition and that of the noble Lord, Lord Hodgson— but about protecting the sources and methods of intelligence, for which the threshold needs to be very high. I know I have said this before in the House, and I hope noble Lords will excuse me for repeating it, but sources of information are vulnerable. They can be killed, and they then cannot produce intelligence that might be life-saving. Techniques can be damaged overnight, rapidly. What we are trying to do here is to protect the most sensitive sources and methods but not the picture of what has happened, the material that should be available to the court which may be sensitive. I would say that it is actually narrower than what the noble Lord, Lord Hodgson, is suggesting for the purposes of this legislation. However, the difficulty with a waterproof definition, however attractive, is that this is a moving picture. At one stage, natural hazards and disasters—pandemics and so on—were never in a national security strategy. We can argue whether they should be, but successive Governments, rightly, take different interpretations of the breadth or narrowness of the subject.

The Earl of Erroll: My Lords, there was one thing I forgot to say. It is important to the noble Lord, Lord Hodgson. I think Pepper v Hart applies only where there is a conflict between European directives or

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regulations and UK law and the interpretation of it. Therefore you may not be able to get a Pepper v Hart —as you might say—pronouncement from the Minister tonight.

Lord Thomas of Gresford: I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.

Lord Beecham: My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

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It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

The Marquess of Lothian: My Lords, Clause 6(2) states:

“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.

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Lord Beecham: It would, but the court would be assisted perhaps by an approach in which the Government in advance and in general terms—and not necessarily on a permanent basis—indicate what they consider is relevant for the purposes of these claims. They could, for example, say, “We have a national security strategy, but there are things in here on which we would not seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which the commission referred and to which the noble Baroness, Lady Manningham-Buller, referred.

The noble Lord, Lord Hodgson, provides a definition that is both too broad and too narrow. It seems too broad if one looks simply at the definition of “intelligence or military operations”. There have been cases that resulted in inquests—to which these procedures would not apply—where, for example, there might be a question about whether equipment used during military operations was fit for purpose, and that might give rise to a civil claim, for example, by a wounded soldier; we know that such incidents have arisen. The noble Marquess might say that that does not really constitute national security for the purposes of bringing a claim. On the other hand, the definition could be considered too narrow, because one can envision circumstances in which there was no military operation but there was transportation of chemical or fissile substances or storage of such things, which were not necessarily for military purposes but which obviously would count as being relevant to national security because of the risk of terrorists seizing the equipment or substances. Those examples illustrate the difficulties but do not, perhaps, take us very far.

I wonder whether, in these circumstances, it might be a matter for the Government, possibly with the assistance of the Intelligence and Security Committee, to provide some guidance about what would be deemed to be relevant to the issue of national security in the event of an application being made, assuming that the basic principle is accepted and that the Government are found by Parliament to have made their case—and, I repeat, so far as the Opposition are concerned, we are not yet convinced of that. It may even be that negative definitions of the kind that I have indicated in relation, for example, to the national security strategy, might be helpful so that you can exclude certain things ab initio, and you might give an indication of things that are clearly included—military operations, I would have thought, certainly would be included.

The contributions of the noble Lord, Lord Deben, and, in particular, the noble Lord, Lord Hodgson, as well as that of the noble Earl, Lord Erroll, have indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity of the Government, with the advice and support of the ISC, to produce not a statutory definition, because that would be too rigid, but guidance that would assist the courts and others in considering these matters at the relevant time. Does the Minister consider that a step worth taking?

4.15 pm

Lord Faulks: The noble Lord said that the party opposite is not yet convinced of the need for CMPs, and he made various suggestions about possible guidance

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or a definition that would assist on the question of national security. Does it follow that if there were further guidance or a better definition of national security along the lines he suggested, that would go some way to satisfying whatever needs to be satisfied in terms of the party opposite’s potential opposition to CMPs?

Lord Beecham: My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.

That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the

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type of material that would be considered within a CMP—material that if released would damage national security.

The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.

The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.

It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.

The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—

Lord Hodgson of Astley Abbotts: The noble and learned Lord just said that the special advocates could make representations to the court. I am not a lawyer, as I have said frequently, but Clause 7(1)(b) states that,

“such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

Does that not mean that only one side presents?

Lord Wallace of Tankerness: I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.

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I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.

My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.

My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.

I have an embarras de richesses.

Lord Pannick: Can the Minister confirm that the concept of national security under the Bill is deliberately intended to be narrower than the other concepts included in the Bill? I have in mind Clause 5(5), which appears to contrast the concept of national security with the broader concepts of public interest, the prevention or detection of serious crime and the economic well-being of the United Kingdom. It appears from Clause 5(5) that those are distinct matters. National security is a much narrower concept, and similarly Clause 13(5) appears to contrast the concept of national security with the concept of the interests of the international relations of the United Kingdom. I understood the noble and learned Lord to confirm that those other concepts were not within the concept of national security.

Lord Wallace of Tankerness: My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.

Lord Lester of Herne Hill: I have two points. I do not understand why it is necessary to refer to Article 6 of the convention in the way that the Bill unusually

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does, given that the Human Rights Act requires the Bill to be read and given effect to—in so far as is possible—compatibly with convention rights, including Article 6, and given that the court is required under Section 6 of the Human Rights Act to act in a way compatible with convention rights, including Article 6. I have not before seen in any other legislation post the Human Rights Act the singling out of an article of the convention in that way. It seems to me to be troublesome as it might lead to some inferences that are incompatible with the scheme of the Human Rights Act.

On the same subject, the convention distinguishes between national security in the narrow sense and factors like the economic well-being of the country, to which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of distinctions that the Government have in mind when they deal with national security in a narrow sense?

Lord Wallace of Tankerness: My Lords, I hope that Clause 11(5)(c) is not troublesome because it is intended to be the opposite. As we have already heard in our deliberations in Committee, concern has been expressed, even a short while ago by the noble Lord, Lord Beecham, about Article 6. The clause seeks to give reassurance and I hope that my noble friend will be satisfied with that. No doubt there may be something on which I can give further reassurance. I think I am right in saying that what is there follows what is in the TPIM Act and the Counter-Terrorism Act. Questions might be raised but it is there to make matters absolutely clear.

My noble friend Lord Hodgson said that he hoped that we would not allow a situation where citizens would be swept up by a wide definition of national security. My noble friend Lord Deben gave a graphic illustration of his son walking the dog. It will not be a constable or a high-ranking officer in Whitehall but a judge who will make the decision. Nor indeed—I shall make this very clear—is the intention to avoid embarrassment. In fact, an important purpose of the Bill is to allow material to be considered by the courts in cases where to exclude it may mean that a case has to be settled. The purpose is actually to allow a court to be able to consider it; this is far from wanting to sweep things under the carpet. If it were the case that, at some date in the future, a Secretary of State tried to use the provisions for the purposes of concealing embarrassment rather than to prevent damage to national security, that is something the court would be entitled to take into account when deciding whether the gateway test in Clause 6 was passed.

There is another point I would make to my noble friend Lord Hodgson, who said that the possibility of someone going to prison was important here. I would like to reassure both my noble friend and the Committee that the provisions in this part of the Bill relate to civil, not criminal proceedings. There would not be a situation, therefore, where a person would go to prison as a result of the provisions in this part of the Bill.

4.30 pm

Lord Elystan-Morgan: My Lords, I thank the noble and learned Lord and I apologise for the fact that I missed the opening skirmishes of this debate. May

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I put a point to him which is utterly fundamental? The noble Marquess, Lord Lothian, said that we would know national security when we came across it. To put a judge in that position would mean that we would give them a legislative function as opposed to an interpretative function? That should be avoided, should it not? I do not expect an immediate answer from the Minister, but could I leave him to mull over this thought? It may be that a different approach could settle the matter in this way. If there was a definition of national security—something of the order of dealing with a situation that jeopardises, or has the potential to jeopardise, a fundamental function of the state—might that be not unacceptable?

Lord Wallace of Tankerness: My Lords, I will certainly mull over that point. However, in coming up with any definition, we would want to be very careful that it did not exclude things that should be included or include things that perhaps should be excluded. We will look very carefully at what he has said. The intention is that the concept should be a narrow one that will come into play in a very small number of cases. However, the definition set out in the amendment would not cover everything that is damaging to national security. Factors that are damaging to national security can change in accordance with assessments about the threat to the country. That was reflected in the contributions we have had, not least from the noble Baroness, Lady Manningham-Buller. If the definition is too narrow, we take the risk of legislation becoming unfit for the purpose for which it is intended. Sensitive intelligence and security material which security intelligence agencies hold and which is so vital to the discharge of their important statutory functions will have been acquired by them in a variety of ways and from a variety of different sources. Not all national security-sensitive material held by the security and intelligence agencies will by any means relate to, or be the result of, operations.

In view of this, we believe that the amendment is unduly limiting. For example, if information has been shared with United Kingdom agencies in confidence by foreign intelligence agencies, or has been disclosed to them in confidence by human sources, the amendment would not enable such information to be used within a CMP, however sensitive the provenance of the information and however confidential the relationship. There could also be a situation where the agencies have undertaken preliminary research and analysis before deciding whether there is a sufficient national security case to justify embarking on an intelligence operation. Information generated during the course of that preliminary work, whether or not an actual operation ensued, could well be highly sensitive in security terms and of significant relevance in a particular case. However, if the amendment was accepted, it would not be possible to use the information.

I think that it was the noble Lord, Lord Beecham, who said that there was a danger that the amendment was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including operations by the military—would relate to national security. In fairness, my noble friend Lord Hodgson of Astley Abbotts accepted that the terms of the amendment might not be ideal. It is perhaps illustrative of the fact

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that any attempt to make a definition can often be either too limiting or too broad. The Bill recognises that national security is very much an issue for the Secretary of State.

Lord Butler of Brockwell: My Lords, in supporting the noble and learned Lord’s argument that the definition should not be too narrow, perhaps I may take him back to the point made by the noble Lord, Lord Pannick. He sought to establish that national security was a narrow definition by invoking the categories in new Section 59A(5), as inserted by Clause 5, which are,

“national security … the prevention or detection of serious crime”,

and,

“the economic well-being of the United Kingdom”.

It must be the case that national security would include some of those other categories. The most obvious one is,

“the prevention or detection of serious crime”,

which might be terrorist crime.

Lord Wallace of Tankerness: My Lords, the Green Paper suggested that there might well be the category of the prevention of serious crime. That was considered by the Government. I indicated earlier in my remarks that the Bill deliberately omitted from the definition other aspects of the public interest from the CMP clauses, such as international relations and the prevention or detection of crime, although they do apply in other statutory CMPs. But the consideration of the representations received in response to the Green Paper was to make it solely matters that would be damaging to national security.

The policy of successive Governments and the practice of Parliament has not been to define the term “national security”. As a number of your Lordships accepted, it has been to retain the flexibility needed to ensure that the use of the term can adapt to changing circumstances —for example, changes to the threat environment and advances in technology. The nature of national security threats and risks is constantly evolving. That, in turn, requires the Government and the security and intelligence agencies to maintain their ability to evolve.

My noble friend Lord Lothian suggested that it would be better to leave this open and the noble Lord, Lord Beecham, accepted that it was not always possible to be definitive. The current approach is based on the recognition that this is a flexible concept which evolves in the light of changing circumstances. As my noble friend Lord Hodgson said, we want to avoid a legal straitjacket. The risk of any attempt to be precise and exhaustive would be to constrain the ability of the security and intelligence agencies to adapt their operational approach and develop capabilities to meet new and unexpected changing threats.

I will conclude with a pertinent example. Neither weapons of mass destruction proliferation nor cyber attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 of the Security Service Act 1989. But who could deny that, some 23 years later, these activities represent serious

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threats to the UK’s national security? The flexibility is there for the security services to be charged with responsibilities without there being an exhaustive list.

The noble Lord, Lord Beecham, accepted that there might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly consider guidelines, but I am not entirely sure where they would fit into the guidance being given to the court, even with the help of the ISC in devising them. However, I know that the suggestion was made in a constructive manner and I will certainly think about it in a constructive way. I do not readily see how it will fit in, but I will certainly consider it. He may wish to elaborate on what he had in mind.

Lord Beecham: I particularly had in mind ruling out areas—the noble and learned Lord has already indicated some of them—that would not be deemed to fit within the definition that the Government seek to apply. It is an exclusive rather than an inclusive list that I think might be helpful,

Lord Wallace of Tankerness: My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.

I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.

I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.

Baroness Manningham-Buller: I take it as a compliment. It just sounded as though I had been boasting, and I would not want to do that.

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Lord Hodgson of Astley Abbotts: It certainly was not boasting. It was my remark, not any remark the noble Baroness made to me. I found her history lesson, as she described it, very useful. We started from a narrow definition which has now moved out to a much wider range of threats. Of course, one must accept her stricture about protecting sources of intelligence where men and women put their lives on the line to help provide intelligence that protects this country. I thought her suggestions about narrower definitions were very interesting. As we are going to be using CMPs in rare cases and we accept that this is a dangerous precedent in many ways, perhaps some relationship between the definition and the operation of this Bill might be helpful.

In conclusion, I just say that the shift in gears with this Bill—the widening use of CMPs—requires us to consider and reflect on how we use the term “national security” as the trigger without any definition. My noble and learned friend has given plenty of food for thought and I would like to have a chance to consider and reflect. In the mean time, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Clause 6 agreed.

Amendment 54

Moved by Lord Thomas of Gresford

54: After Clause 6, insert the following new Clause—

“Disclosure of information

The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.”

Lord Thomas of Gresford: My Lords, this amendment is concerned with an anomaly that was revealed in the case of Evans v Ministry of Defence. The case concerned the handing over of Taliban suspects by British forces to Afghan security police, with the distinct likelihood that they would be tortured. The security services argued that they were not required to disclose documents in their possession for the purposes of the case because they were not themselves being sued—they were not the party concerned. The defendants were the Ministry of Defence. They said that there was a statutory bar. By Section 2 of the Intelligence Services Act 1994, the chief of the Intelligence Service is under a duty to ensure that there are arrangements for securing that no information is disclosed,

“except so far as is necessary for the proper discharge of its functions”.

Section 2(2)(a) of the Security Service Act 1989 is of a similar effect. It was argued that it was not necessary even to reveal the existence of the relevant material in their possession since it was not disclosable. I am informed by the Bingham Centre for the Rule of Law that the Evans case is not the only case in which the security services have advanced that argument.

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Clause 6(2) as currently drafted provides that CMP applications apply where a party to the proceedings,

“would be required to disclose material”,

and so it is still open to the security services to argue for what they call a statutory bar, which would mean that they were not required to disclose anything at all unless they were themselves being sued. Paragraph 3(4) of Schedule 1, which we have looked at on a number of occasions, is interesting because it makes a specific provision that disclosure to the ISC is,

“necessary for the proper discharge of the functions”.

It is there, presumably, to counter any argument that might be made by the security services that they were not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for the ISC, there is no reason why a similar provision should not be made for disclosure to the court under Clause 6(2), which is the purpose of the additional clause I have advanced. It would counter any argument that the security services would not be required to reveal anything unless they were being sued themselves. I beg to move.

4.45 pm

Lord Pannick: My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?

Lord Thomas of Gresford: As I understand it, the court did not accept the argument.

Lord Beecham: My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.

Lord Wallace of Tankerness: My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.

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As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.

My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.

My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.

I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing

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case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.

Lord Thomas of Gresford: I am most grateful to my noble friend for indicating that he will look at these cases. In the light of that I beg leave to withdraw my amendment.

(a) the judge in the relevant civil proceedings shall thereafter sit with four independent judicial commissioners who shall sit throughout all open and closed proceedings;

(b) the independent judicial commissioners shall sit with the judge as judges of fact.

(2) The independent judicial commissioners shall consist of—

(a) county court judges, serving or retired, who have been subject to security vetting, such security vetting to have been supervised by a High Court judge; or

(b) retired judges of the High Court, Court of Appeal or Supreme Court; and in either case—

(i) being persons who have had no professional or other substantial connection with the armed services or security services; and

(ii) being persons who have, so far as possible, never before sat as judges or independent judicial commissioners in closed material proceedings.

(3) Judgement shall be given in favour of the excluded parties in the relevant civil proceedings unless the judge and the judicial commissioners shall unanimously or by a majority verdict of not less than 4:1 find that the cases of the excluded parties have been disproved to a high degree of conviction.”

Lord Dubs: My Lords, let us suppose that we have the first case heard or not heard in public under these new procedures. There are bound to be doubts, particularly if it is a case that has achieved a certain amount of publicity and notoriety, about the reliability and integrity of a verdict that has been entered against a citizen after the court has heard the evidence against him or her in secret. It is something to do with the concept, in a phrase that I have heard, of the secret whispers that the judge will have heard. I am not for a moment suggesting that the judge would not behave with total reliability and integrity, but there is also the question of the public perception of how that has happened.

There has to be a concern that the public may perceive that a single judge might be thought of as being one-sided if he repeatedly hears the state’s evidence in secret and finds in its favour. All that we shall know is that the judge has heard a lot more than the rest of the world is able to discern. Is it possible to develop any safeguards against what would be a serious perception about how the judges have operated? I repeat that I am

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not in any way suggesting that the judge would not behave with integrity, but he has to be seen to do so by the public.

This probing amendment suggests that there is one way of lessening a critical perception on the part of the public. That would be to appoint judicial commissioners. They would be able to sit with the judge. It would not be the judge on his own, but there would be four judicial commissioners. As the amendment makes clear, these judicial commissioners would be security-cleared county court judges or retired members of the upper judiciary; they would be totally independent of the security services or the Armed Forces; and, wherever possible, they would not have sat on CMPs before. All I am talking about here is a very simple safeguard that would not affect the principle of what the Government are about.

By putting this amendment forward, I am in no way accepting the basic principle of CMPs, but if one tries to make something one does not like less bad, one is not necessarily accepting the principle of the thing—just in case there is any misunderstanding. Having said that, to make this work less badly than the Bill currently proposes, I am simply suggesting that it might be helpful to have independent commissioners sitting alongside the judge. I beg to move.

Lord Lloyd of Berwick: I have not had much time to consider this amendment but, on the face of it, it seems attractive. Of course, judges are quite used to sitting with assessors on questions of fact. Certainly that is true in patent cases at all levels and, if I remember correctly, the Restrictive Practices Court used to sit with lay assessors. It is true that in all those cases the assessor would be an expert rather than a judge, so he would not be able to overrule the judge on a question of fact. But that was not always so in other cases; for example, the president of an employment tribunal could always be overruled—and was sometimes overruled —by the two other members of the tribunal on a pure question of fact. Therefore, the idea of the judge in these cases sitting with other judges is not altogether startling.

However, the reason I support the amendment is rather different from the one given by the noble Lord, Lord Dubs. Being a judge can be a very anxious business. Of course, in the most serious criminal cases findings of fact are made by the jury, so the problem does not arise, but there are very serious civil cases where the judge has to make a finding of fact as to which side he believes, and that necessarily involves a finding that the other side is lying. I sat in many such cases and I often felt the need for someone sitting beside me who could either confirm or overrule my view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new closed material procedure, and I support the amendment for that reason.

I have doubts about subsection (3). I would have thought that two assessors rather than four would be sufficient for the noble Lord’s purpose. It would certainly have been sufficient for my purpose when I was sitting as a judge. I hope that the Minister will give a fair wind to this amendment, which I support.

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Lord Faulks: My Lords, very briefly, while the idea of having those who are not the primary judges assisting that judge with making decisions is not unfamiliar—as the noble and learned Lord, Lord Lloyd, has said, it has precedent in a number of different contexts—this represents a rather elaborate and perhaps even cumbersome method of deciding these cases. It also must be borne in mind that the special advocates are particularly anxious to preserve the role of a single judge in whom they have great faith, judged on the limited experience of closed material proceedings. In fact, they very much favour the role of the judge using the existing PII process instead of CMPs, rather than advocating the rather broader process contained in the amendment.

Proposed new subsection (3) is perhaps unusual—which of itself is not an objection—but I respectfully suggest that the final provision requiring a reversal of the burden of proof to a high degree of conviction is really going it a little bit. It means that it will be very difficult indeed for the Government to rely on evidence and the whole purpose of the CMPs will be frustrated. That may indeed be the intention of the amendment but it is not a very satisfactory position.

5 pm

Lord Pannick: My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.

Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.

Lord Carlile of Berriew: My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the

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special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

Lord Elystan-Morgan: My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

Lord Lester of Herne Hill: My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).

My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which

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are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.

It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.

Lord Beecham: My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—

Lord Elystan-Morgan: There are no county court judges. There have not been any since the Courts Act 1971. They are now circuit judges.

Lord Beecham: It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.

Lord Wallace of Tankerness: My Lords, the noble Lord, Lord Beecham, anticipated what the response would be. That said, it is only right to acknowledge the amendment moved by the noble Lord, Lord Dubs, and supported by the noble and learned Lord, Lord Lloyd, with reference to his own experience. I certainly accept that in moving his amendment the noble Lord, Lord Dubs, does not necessarily accept that we should be in the field of closed material proceedings. He made that clear, but he indicated that, in his view, it was necessary to have safeguards of the type proposed in his amendment. The Government’s position is that

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there are safeguards and in future groups of amendments we will be able to discuss the pros and cons of other potential safeguards.

As has been indicated, the amendment would require a judge in a closed material proceeding to sit with a panel of four additional judicial commissioners. In introducing these procedures the Government consider that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government floated the idea of a separate national security court with national security cases being diverted to it and different procedures being adopted in it. However, we concluded that national security is an aspect of disputes which may arise in any field of law and therefore it is better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court where their only unifying factor is national security.

We are concerned that this amendment would be similar to creating a specialist court because it establishes an entirely different finder of fact for cases in which CMPs may be used. It envisages that the panel would preside over both the open and closed parts of the proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of what is proposed here can be illustrated by considering a case where national security material is important, but none the less is a small part of the material in the case. It might possibly even be a single document. Let us say that the court made a declaration that a CMP may be used and accepted an application that the document should be heard in closed proceedings. We would then be faced with proceedings which to all other intents and purposes were indistinguishable from other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Pannick, made the point that single judges are well equipped to deal with this. My noble friend Lord Faulks made the point that subsection (3) very much changes the level and nature of the burden of proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated that it would also lead to cost and delay. I am always wary of talking about cost when we are dealing with such sensitive matters, but that would undoubtedly be the case.

The noble Lord, Lord Dubs, should be congratulated for coming up with an imaginative way of addressing his undoubted concerns. However, the Government believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating a finder of fact in cases of this sort.

I believe that it was the noble Lord, Lord Elystan-Morgan, who mentioned special advocates. They will provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, as I am sure will happen on further occasions in our debates, of the case of M v Home Secretary in which

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the noble and learned Lord, Lord Woolf, granted an appeal on the basis of a rigorous cross-examination in the closed session. That in itself is testament to the work of special advocates in these situations. I hope that I and other noble Lords who have contributed have gone some way to encouraging the noble Lord, Lord Dubs, to withdraw his amendment, while recognising his motivation in putting it forward.

5.15 pm

Lord Lester of Herne Hill: Will my noble and learned friend reassure the Committee that it is not part of the Government’s aim to change the overriding objective of the Civil Procedure Rules, which enable and require the courts to deal justly with cases?

Lord Wallace of Tankerness: I hope I indicated that we do not want to create something that is entirely different—some sort of national security court. Consistent with the other aspects of civil procedure, this is an additional tool to have closed material proceedings for material that would be damaging to national security if disclosed but should nevertheless be available to the courts.

Lord Dubs: I am grateful to the noble and learned Lord for his response, as I am to the noble and learned Lord, Lord Lloyd of Berwick, for obvious reasons. I thank him for his support. I cannot say that I have been overwhelmed by a tidal wave of approval from the rest of the Committee but that, as they say, is politics.

I have a very brief comment. The Bill will, after all, abolish juries. Given that we are abolishing juries, the proposal—

Lord Wallace of Tankerness: My Lords, these would be civil proceedings, which would be presided over by a single judge in any event. This does not relate to criminal cases, in which there would be a jury, but solely to civil proceedings.

Lord Dubs: My Lords, that is fair enough but the point of the judicial commissioners would be to help in establishing the facts. I have listened hard to the comments that have been made and will ponder them to see what sort of amendment might take into account the criticisms and would be appropriate when we get to Report stage. In the mean time, I beg leave to withdraw the amendment.